SC Explains Scope Of Remand Under Order XLI Rule 23A CPC; Appellate Courts Must Not Pass Orders Of Remand In A Routine Manner [Read Judgment]

Discussing the powers of remand under the Code of Civil Procedure, the Supreme Court has reiterated that re-trial should not be ordered in a routine manner, and that the appellate court must not pass orders of remand in a routine manner.This was in the civil appeal titled Shivakumar and others vs Sharanabasappa and others.A bench comprising Justices A M Khanwilkar, Hemant Gupta and Dinesh Maheshwari and Hemant Gupta observed that the Appellate Court should ordinarily determine the suit finally when the evidence available is sufficient to dispose of the matter."A conjoint reading of Rules 23, 23A and 24 of Order XLI brings forth the scope as also contours of the powers of remand that when the available evidence is sufficient to dispose of the matter, the proper course for an Appellate Court is to follow the mandate of Rule 24 of Order XLI CPC and to determine the suit finally. It is only in such cases where the decree in challenge is reversed in appeal and a re-trial is considered necessary that the Appellate Court shall adopt the course of remanding the case".The bench also caution against routine remand, as it would elongate the life of litigation. The appellate court should not remand the case only on the points on appreciation of evidence not dealt with by the trail court, as the appellate court itself is possessed of power to enter into facts and appreciate the evidence."It remains trite that order of remand is not to be passed in a routine manner because an unwarranted order of remand merely elongates the life of the litigation without serving the cause of justice. An order of remand only on the ground that the points touching the appreciation of evidence were not dealt with by the Trial Court may not be considered proper in a given case because the First Appellate Court itself is possessed of jurisdiction to enter into facts and appreciate the evidence". It also remains trite that an order of remand is not to be passed merely for the purpose of allowing a party to fillup the lacuna in its case, added the bench."It gets perforce reiterated that the occasion for remand would arise only when the factual findings of Trial Court are reversed and a re-trial is considered necessary by the Appellate Court", the Court said. Factual BackgroundThe SC was considering an appeal from the High Court of Karnataka, which reversed the findings of a trial court regarding the genuineness of a Will.In SC, it was argued that if at all the High Court found the want of requisite evidence, the proper course was to exercise the power of remand under the provisions of Order XLI Rule 23-A CPC. It was advanced that the High Court being the first Court of Appeal, ought to have given the opportunity to the appellants to adduce proper additional evidence, considering the fact that the findings were being made on suspicious circumstances other than those raised by the defendants in their pleadings and evidence. The bench observed that at least four disturbing, unusual features of the document in question are evident on the face of the record- "(i) it is typewritten on 3 different sheets of paper; (ii) the placement of signatures of the testator is not of uniformity and excessive space is seen between the typewritten contents and the signatures on page number 1 and page number 5; (iii) different pens have been used for signatures on different pages with ink pen having been used for first and third signatures (on page number 1 and page number 5) and ballpoint pen having been used for the second signature (on page number 3); and (iv) all the typewritten pages do not carry the signatures of the testator, with there being no signature on page number 2 and page number 4" "The High Court has stated such deduction after thorough examination of the material on record and, in our view, rightly so...However, the Trial Court, even while dealing with several contentions in excessive details, either failed to notice some of the features indicated above or simply brushed aside the particular feature carrying abnormality with the observations to the effect that the propounders were not to be expected to remove the suspicions concerning the document when they had no role in its execution. The Trial Court having, obviously, misdirected itself on several of the key and pivotal factors, its decision could not have been approved", the Apex Court proceeds to state, adding that "the High Court was right in reversing the decision of the Trial Court and in holding that the contested Will was not a genuine document" WHETHER REMAND WAS CALLED FORThe bench made its pronouncements on the scope and power of remand while rejecting the argument of the appellants that the HC should have ordered re-trial in the matter. "...the submission of learned counsel for the appellants that the High Court ought to have considered remanding the case by taking recourse to the provision contained in Order XLI Rule 23A CPC, in our view, remains totally bereft of substance;...

SC Explains Scope Of Remand Under Order XLI Rule 23A CPC; Appellate Courts Must Not Pass Orders Of Remand In A Routine Manner [Read Judgment]

Mehal Jain

Tags